DEBENDRANATH TRIPATHI Vs. STATE OF ORISSA

JUDGEMENT

(1.) Since all these three applications relate to one incident in respect of which cognizance has been taken by the learned Sub-Divisional Judicial Magistrate, Sadar, Cuttak, under Sections 304 and 201 read with Section 34 I.P.C., they are disposed of by this common judgment Petitioner Nos. 1,2 and 3 in Criminal Misc. Case No. 895/87 are opposite party Nos. 2, 4 and 5 in Criminal Misc. Case No. 845 of 1987 and the petitioner in Criminal Misc. Case No. 1045 of 1989 is opposite party No.3 in Criminal Misc. Case No. 845 of 1987 whereas the petitioners in Criminal Misc. Case Nos. 845 and 895 of 1987 figure as opposite party Nos. 2 to 7 in Criminal Misc. Case No. 1045 of 1989.

(2.) The prosecution case in respect of which charge-sheet was filed against the respective petitioners relates to an incident in which a hydrocels operation of one Rabindra Kumar Patnaik, an Assistant Engineer, was carried out in a private clinic in charge of the petitioner in Criminal Misc. Case No. 1045 of 1989, an Assistant Professor of Surgery in S.C.B. Medical College Hospital. Admittedly the said Rabindra Kumar Patnaik, who had been admitted to the nursing home on 24/11/1986 at 9 a.m., died on the same day while he was inside the operation theatre. The information was lodged by his brother-in-law, one Shyam Sundar Patnaik in Mangalabag Police Station at about 11.45 P.M. on the same day alleging that the victim met his death due to the uttar negligence and carelessness of Dr. D.K. Roy and his associates in the nursing home. It is the prosecution case that the operation was to be conducted by Dr. D.K. Roy and Dr. Bishnu Charan Mishra. All the accused except Dr. Debendranath Tripathy were in the operation theatre where the victim was taken at about 3 p.m. Dr. Debendranath Tripathy reached the operation theatre at about 6 p.m. At about 7 p.m. the relatives of the patient were informed of he having died. During investigation, the prosecution claims to have found that the patient died due to asphyxia caused due to heavy dose of anesthesia though no proper test on the deceased had been earlier made, and that the patient had an enlarged heart. The clinic was also not equipped with proper equipments to render timely aid for recovery of the patient from the adverse effects of anesthesia. After the death occurred, some operation was carried out on the body of the patient for which purpose Dr. Debendranath Tripathy had been called in who had arrived at around 6 p.m. It is for such reason that the charge-sheet was submitted under Sections 304 and 201 read with Section 34, I.P.C. On perusal of the charge-sheet the Sub-Divisional Judicial Magistrate took cognizance under the Sections against the petitioners for which they have come up before this Court assailing the order.

(3.) It is the submission of Mr. P.K. Dhal, the learned counsel appearing for the petitioners in Criminal Misc. Case No. 845/87 as also the learned counsel appearing in other cases that even if the prosecution case is accepted in toto, yet a case under Section 304, I.P.C. is not made out and as no substantive offence is established, cognizance could not have also been taken under Section 201, I.P.C. It is also frankly submitted by the learned AddI. Govt. Advocate that on the allegation though no offence under Section 394, I.P.C. is made out, yet a clear case under section 304-A, I.P .C. is made out against the petitioners. It has been however submitted by Mr. S.K. Sahoo, the learned counsel appearing for the informant that in view of Section 299, I.P.C., a case under Section 304, I.P.C. must be held to have been made out by the prosecution to enable the Magistrate to take cognizance under that Section.